In the matter of : Sardar
Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)
As the parties are living separately for more than sixteen
years and there has been no reconciliation and the marriage has been
irretrievable broken down, it is just and proper that the marriage between the
parties is dissolved by decree of divorce for the reasons stated in paras 12 to
19.
12. Besides the instances of cruelty detailed in the petition,
there was another instance of cruelty i.e. the scandalous allegations leveled
by the respondent against the appellant of illicit relationship with one
Parvinder Kaur. This allegation was made by the respondent in the cross
examination of the appellant as against all settled law, the learned Trial
Court wrongly rejected this ground of cruelty by simply holding that one single
act cannot be treated as cruelty. The relevant part of the judgment to this
effect is reproduced hereunder :
"...The counsel for
petitioner has contended that the respondent has also inflicted cruelty upon
the petitioner as during cross examination, it was suggested to him that he had
illicit relations with one Parvinder Kaur and was residing with the said woman.
The counsel for petitioner objected to said cross examination of the petitioner
being beyond pleadings of the respondent, so, counsel for respondent was not
allowed to put further question to that effect to the petitioner. Admittedly,
there are no pleadings of the respondent that the petitioner had illicit
relations with one Parvinder Kaur and this suggestion to the petitioner was
given beyond pleadings. Even perusal of the testimony of the respondent shows
that once she had tried to contact the petitioner when he was residing at
Rohini, she found one another lady inside the house and petitioner on that
occasion had asked the respondent to leave the place or he would break her legs
and throw her from the fourth floor. This incident appeared to have taken place
subsequent to the filing of the petition and it should have been brought on
record by the respondent through her counsel as subsequent event, however, it
has not been done so in the present case. No doubt, leveling of scandalous
allegations without proof do amount to mental cruelty but in the present case,
keeping in view the totality of the circumstances and the conduct of the
petitioner one single act of the respondent that she disclosed before the
court that petitioner was found living with another woman cannot be treated as
cruelty for dissolution of their marriage, particularly, when the respondent
till date wants to keep her thirty years old marriage with the petitioner
alive...."
19. It is the admitted position that the parties are living
separately since January, 1995, i.e. for more than sixteen years. The
allegations of cruelty is also such which makes reconciliation between the parties
have "irretrievable broken down" and as such there is no reason to
carry on with the broken or dead marriage and continuation with such a marriage
will cause further mental cruelty to the appellant. In such cases, it is
expedient and necessary to dissolve the marriage with decree of divorce as it
has been held in Samar
Ghosh vs. Jaya Ghosh, (2007) 4
SCC 511, the relevant part is reproduced hereunder :
"Once the parties
have separated and the separation has continued for a sufficient length of time
and one of them has presented a petition for divorce, it can well be presumed
that the marriage has broken down. The court, no doubt, should seriously make
an endeavor to reconcile the parties; yet, if it is found that the breakdown is
irreparable, then divorce should not be withheld. The consequences of
preservation in law of the unworkable marriage which has long ceased to be
effective are bound to be a source of greater misery for the parties."
In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )
“Having
dispassionately considered the materials before us and the fact that out of 16
years of marriage the appellant and the respondent had been living separately
for 14 years, we are also convinced that any further attempt at reconciliation
will be futile and it would be in the interest of both the parties to sever the
matrimonial ties since the marriage has broken down irretrievably.”
